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Judgments of Supreme Court of India and High Courts

Mahesh Pahade vs The State Of Madhya Pradesh on 18 July, 2018

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The High Court Of Madhya Pradesh: Jabalpur

(DIVISION BENCH)

Criminal Appeal No. 933/2014
(Order on I.A. No. 6367/2017)

Mahesh Pahade ……. APPELLANT
Versus
State of Madhya Pradesh ….. RESPONDENT

————————————————————————————————-
CORAM:
Hon’ble Mr. Justice Hemant Gupta, Chief Justice
Hon’ble Mr. Justice Vijay Kumar Shukla, Judge
————————————————————————————————-

Appearance:
Mr. Vishal Daniel, Advocate for the Appellant.
Mrs. Namrata Agrawal, Government Advocate for the respondent-State.
Mr. N.P. Dubey, Advocate for the Complainant/Prosecutrix.
————————————————————————————————-
Whether Approved for Reporting: Yes

Law Laid Down:

 Though it is the responsibility of the State to bring the accused to law but in
such process the actual sufferer of crime cannot be permitted to stay outside the
law and to watch the proceedings from hindsight. It will be travesty of justice if
the victims of such heinous crime are denied right to address their grievances
before the courts of law. – Relied upon – Declaration of “Basic Principles of
Justice of Victim for Crime and Abuse of Power” adopted in 96 th plenary
meeting of the General Assembly on 29th November 1985.

 Once right of appeal has been given to a victim, it shall include all ancillary
rights which are attached with the right to appeal. Such right to appeal will
include right to seek cancellation of bail if the victim is aggrieved against such
an order, as it is her rights and honour, which is in issue apart from the crime
against humanity protected by the State.
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Judgments Relied upon:

1. (2018) 3 SCC 187 (Lachhman Dass vs. Resham Chand Kaler and Another);

2. (2016) 6 SCC 699 (Amanullah and Another vs. State of Bihar and others);

3. (2009) 6 SCC 767 (National Human Rights Commission vs. State of Gujarat
and others);

4. (2006) 3 SCC 374 (Zahira Habibullah Sheikh and another vs. State of Gujarat
and others);

5. (2001) 6 SCC 338 (Puran etc. vs. Rambilas and another etc.);

6. (2000) 2 SCC 391 (R. Rathinam vs. State by DSP);

7. (1980) 3 SCC 141 (P.S.R. Sadhanantham vs. Arunachalam and another);

8. (1979) 4 SCC 719 (Rattan Singh vs. State of Punjab);

Significant Paragraph Nos. : 11 to 24
——————————————————————————————–
Heard/Reserved on: 11.07.2018

ORDER

(Passed on this 18th day of July, 2018)

Per : Hemant Gupta, Chief Justice:

I.A. No.6367/2017:

The application (I.A. No.6367/2017) is for cancellation of bail granted

to the appellant on 09.12.2016 under Section 389 of the Code of Criminal

Procedure, 1973 (for short “the Code”) on behalf of the prosecutrix.

2. The present appeal arises out of a judgment passed by the learned

Sessions Judge, Mandla on 10.02.2014 convicting the appellant for an offence

punishable under Section 376(2)(n) of the Indian Penal Code, 1860 (for short

“the IPC”) and Section 6 of the Protection of Children from Sexual Offences

Act, 2012 and sentencing him to suffer imprisonment for life for an offence
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under Section 376(2)(n) of the IPC and fine of Rs.20,000/-; in default of

payment of fine, to further undergo rigorous imprisonment for two years.

3. The allegation against the appellant is that he exploited the prosecutrix

of 14½ years of age from October, 2010 to 10 th February, 2013. The appellant is

related to the prosecutrix being his uncle. The accused was a visitor to the father

of the prosecutrix at their house and used fiduciary relationship to sexually

exploit her. The learned Trial Court convicted the appellant for the offences

charged and sentenced the appellant in the manner indicated hereinabove.

4. While considering the third application for suspension of sentence, this

Court passed an order on 09.12.2016 admitting the appellant to bail. The

appellant had relied upon additional document obtained under the Right to

Information Act, 2005 that the date of birth as mentioned in Ex.P-10 as

24.10.1998 does not belong to the prosecutrix and in fact, belongs to another

person Dharamraj. In reply on behalf of the respondent, the stand of the

appellant was denied, but, the Court found that certificate issued by the

Authorities makes the document of age submitted by the prosecution as

doubtful. It was observed that the prosecutrix being less than 18 years of age

may not be correct if the benefit of three years on either side is considered. Thus

the age arrived at by the learned trial Court on the basis of an ossification test

conducted on 01.03.2013 in which she was found to be 13½ to 14½ years of age

may not be justified.

5. In an application for cancellation of bail, it is pointed out that the

registration number has been wrongly mentioned in the certificate (Ex.P-10).

The correct Serial No. is 1757 and actually she was born in village Ikalbihari
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and contents of Ex.P-10 are correct. It is pointed out that the certificate cannot

be said to be a forged document only on the basis of wrong registration number.

It is also pointed out that even if the benefit of three years of age is given to the

prosecutrix, still she does not attain the age of 18 years as the maximum age

would be 17½ years. Thus, it is pointed out that the appellant has been granted

bail on the basis of additional document, which could not have been taken into

consideration at the stage of consideration of the application for suspension of

sentence and that too without giving any opportunity to the victim to controvert

the allegation, which was pertaining to the age of the prosecutrix.

6. Learned counsel for the appellant vehemently resisted the application

for cancellation of bail and argued that such application is not maintainable, as

in terms of Section 389 of the Code, it is only the Public Prosecutor who can file

an application for cancellation of bail. Even if a victim has been given right to

file an appeal against an order of acquittal in terms of proviso to Section 372 of

the Code, she does not become entitled to seek cancellation of bail. Learned

counsel for the appellant relies upon a judgment of the Supreme Court reported

as (2015) 15 SCC 613 (Satya Pal Singh vs. State of Madhya Pradesh and

others) wherein it has been held that right to prefer an appeal to the High Court

in terms of proviso to Section 372 of the Code can be exercised only after

obtaining leave of Court as required under Sub-section (3) of Section 378 of the

Code. It is, therefore, contended that the rights of the prosecutrix are not larger

than that of a Public Prosecutor. The Public Prosecutor alone has been conferred

right to seek cancellation of bail, therefore, the application for cancellation of

bail at the instance of prosecutrix is not maintainable.

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7. Learned counsel for the appellant also refers to a judgment of the

Supreme Court reported as (2016) 10 SCC 378 (Dhariwal Industries Limited

vs. Kishore Wadhwani and others) to argue that the prosecution in a Sessions

Court cannot be conducted by anyone other than the Public Prosecutor. The role

of the informant or the private party is limited during the prosecution of a case

in a Court of Session. The counsel engaged by such person is required to act

under the directions of the Public Prosecutor.

8. Learned counsel for the appellant also relies upon an order passed by the

Supreme Court in Special Leave to Appeal (Criminal) No.2240/2018 (The

High Court of Judicature of Hyderabad for the State of Telangana and the

State of Andhra Pradesh vs. Mahabunisa Begum others) on 14.05.2018,

wherein, an order of High Court for the State of Telangana and Andhra Pradesh

rendered in Criminal Petition No.7108/2017 (Smt. Mahabunnisa Begum vs.

State of Telangana and 2 others) was set aside in the light of the decisions

reported as (1999) 7 SCC 467 (Shiv Kumar vs. Hukam Chand Anr.) and

Dhariwal Industries Ltd. (supra). It may be stated that before the High Court in

Criminal Petition No.7108/2017 (supra), the complainant sought permission to

prosecute a criminal case registered on her complaint through a private

Advocate. The petition was allowed and the complainant/victim was permitted

to engage a private advocate and conduct prosecution by further examination of

any witness in addition to the public prosecutor.

9. We may state that at this stage, only locus of filing of an application for

cancellation of bail itself is being examined in the present order. We have not

heard the learned counsel for the parties on the merits of the application for

cancellation of bail.

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10. On the other hand, learned counsel for the prosecutrix invited our

attention to the decisions of the Supreme Court reported as (1979) 4 SCC 719

(Rattan Singh vs. State of Punjab); a Constitutional Bench decision reported

as (1980) 3 SCC 141 (P.S.R. Sadhanantham vs. Arunachalam and another);

and (2000) 2 SCC 391 (R. Rathinam vs. State by DSP). Learned counsel has

placed a heavy reliance upon a decision reported as (2001) 6 SCC 338 (Puran

etc. vs. Rambilas and another etc.) and a recent decision of the Supreme Court

reported as (2016) 6 SCC 699 (Amanullah and Another vs. State of Bihar

and others). Learned counsel also relies upon the Declaration of “Basic

Principles of Justice of Victim for Crime and Abuse of Power” adopted in 96 th

plenary meeting of the General Assembly on 29 th November 1985. The

declaration laid down the following for access to justice and fair treatment to the

victims:-

“4. Victims should be treated with compassion and respect for their dignity.
They are entitled to access to the mechanisms of justice and to prompt
redress, as provided for by national legislation, for the harm that they have
suffered.

5. Judicial and administrative mechanisms should be established and
strengthened where necessary to enable victims to obtain redress through
formal or informal procedures that are expeditious, fair, inexpensive and
accessible. Victims should be informed of their rights in seeking redress
through such mechanisms.

6. The responsiveness of judicial and administrative processes to the needs
of victims should be facilitated by:

(a) Informing victims of their role and the scope, timing and progress
of the proceedings and of the disposition of their cases, especially
where serious crimes are involved and where they have requested
such information;

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(b) Allowing the views and concerns of victims to be presented and
considered at appropriate stages of the proceedings where their
personal interests are affected, without prejudice to the accused and
consistent with the relevant national criminal justice system;

(c) Providing proper assistance to victims throughout the legal process;

(d) Taking measures to minimize inconvenience to victims, protect
their privacy, when necessary, and ensure their safety, as well as
that of their families and witnesses on their behalf, from
intimidation and retaliation;

(e) Avoiding unnecessary delay in the disposition of cases and the
execution of orders or decrees granting awards to victims.”

11. The Code was amended only vide Central Act No.5 of 2009 whereby the

victim was given permission to engage an Advocate of his choice and also to file

an appeal under Section 372 of the Code. The relevant provisions of the Code,

read as under:-

“24. Public Prosecutors. (1) …………

*** *** ***

(8) The Central Government or the State Government may appoint, for the

purposes of any case or class of cases, a person who has been in practice as
an advocate for not less than ten years as a Special Public Prosecutor:

Provided that the Court may permit the victim to engage an advocate of
this choice to assist the prosecution under this sub-section.

*** *** ***

372. No appeal to lie unless otherwise provided. – No appeal shall lie from
any judgment or order of a Criminal Court except as provided for by this
Code or by any other law for the time being in force:

Provided that the victim shall have a right to prefer an appeal against
any order passed by the Court acquitting the accused or convicting for a
lesser offence or imposing inadequate compensation, and such appeal shall
lie to the Court to which an appeal ordinarily lies against the order of
conviction of such Court.

*** *** ***
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389. Suspension of sentence pending the appeal; release of appellant on
bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for
reasons to be recorded by it in writing, order that the execution of the
sentence or order appealed against be suspended and, also, if he is in
confinement, that he be released on bail, or on his own bond:

Provided that the Appellate Court shall, before releasing on bail or on
his own bond a convicted person who is convicted of an offence punishable
with death or imprisonment for life or imprisonment for a term of not less
than ten years, shall give opportunity to the Public Prosecutor for showing
cause in writing against such release:

Provided further that in cases where a convicted person is released on
bail it shall be open to the Public Prosecutor to file an application for the
cancellation of the bail.

(2) The power conferred by this section on an Appellate Court may be
exercised also by the High Court in the case of an appeal by a convicted
person to a Court subordinate thereto.

*** *** ***

12. The judgment referred to by the learned counsel for the appellant deals

with the right of a victim to assist the public prosecutor during trial or the

procedure to avail the right of appeal under Section 372 of the Code but present

is a situation where the prosecutrix is not seeking her right to engage an

Advocate for prosecution of the accused or for filing an appeal. The accused

stand convicted and is in appeal. The grievance of the prosecutrix is that the

appellant has sought suspension of sentence on the facts, which were not on

record and also by misrepresenting the factual situation. However, as mentioned

above, we are not examining the merits of the prayer for cancellation of bail but

only for the purposes of locus standi, this fact is mentioned.

13. In Rattan Singh (supra), the Supreme Court held that it is a weakness

of our jurisprudence that the victims of the crime and the distress of the
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dependents of the prisoner do not attract the attention of the law. Indeed, victim

reparation is still the vanishing point of our criminal law and this is a deficiency

in the system which must be rectified by the legislature. The relevant extract of

the decision is reproduced as under:-

“6. The victimisation of the family of the convict may well be a reality and
is regrettable. It is a weakness of our jurisprudence that the victims of the
crime, and the distress of the dependents of the prisoner, do not attract the
attention of the law. Indeed, victim reparation is still the vanishing point of
our criminal law! This is a deficiency in the system which must be rectified
by the legislature. We can only draw attention to this matter. Hopefully, the
Welfare State will bestow better thought and action to traffic justice in the
light of the observations we have made…….”

14. Arunachalam’s case (supra) was a petition decided by the Constitution

Bench as the petitioner was convicted in an appeal by the Supreme Court at the

instance of the victim. The Court has delineated the jurisdiction of the Supreme

Court while entertaining a petition under Article 136 of the Constitution of

India. The relevant extract of the said judgment, reads as under:-

“25. In India also, the criminal law envisages the State as the prosecutor.
Under the Code of Criminal Procedure, the machinery of the State is set in
motion on information received by the police or on a complaint filed by a
private person before a Magistrate. If the case proceeds to trial and the
accused is acquitted, the right to appeal against the acquittal is closely
circumscribed. Under the Code of Criminal Procedure, 1898 (Section 417)
the State was entitled to appeal to the High Court, and the complainant could
do so only if granted special leave to appeal by the High Court. The right of
appeal was not given to other interested persons. Under the Code of Criminal
Procedure 1973 (Section 376), the right of appeal vested in the State has now
been made subject to leave being granted to the State by the High Court. The
complainant continues to be subject to the pre-requisite condition that he
must obtain special leave to appeal. The fetters so imposed on the right to
appeal are prompted by the reluctance to expose a person, who has been
acquitted by a competent court of a criminal charge, to the anxiety and
tension of a further examination of the case, even though it is held by a
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superior court. The Law Commission of India gave anxious thought to this
matter, and while noting that the Code recognised a few exceptions by way
of permitting a person aggrieved to initiate proceedings in certain cases and
permitting the complainant to appeal against an acquittal with special leave
of the High Court, expressed itself against the general desirability to
encourage appeals against acquittal. It referred to the common law
jurisprudence obtaining in England and other countries where a limited right
of appeal against acquittal was vested in the State and where the emphasis
rested on the need to decide a point of law of general importance in the
interests of the general administration and proper development of the
criminal law. But simultaneously the Law Commission also noted that if the
right to appeal against acquittal was retained and extended to a complainant
the law should logically cover also cases not instituted on complaint. It
observed:

“Extreme cases of manifest injustice, where the Government fails
to act, and the party aggrieved has a strong feeling that the matter
requires further consideration, should not, in our view, be left to
the mercy of the Government. To inspire and maintain confidence
in the administration of justice, the limited right of appeal with
leave given to a private party should be retained, and should
embrace cases initiated on private complaint or otherwise at the
instance of an aggrieved person.”

However, when the Criminal Procedure Code, 1973 was enacted the statute,
as we have seen, confined the right to appeal, in the case of private parties to
a complainant. This is, as it were, a material indication of the policy of the
law.

26. ……….We think that the Court should entertain a special leave petition
filed by a private party, other than the complainant, in those cases only where
it is convinced that the public interest justifies an appeal against the acquittal
and that the State has refrained from petition for special leave for reasons
which do not bear on the public interest but are prompted by private
influence want of bona fide and other extraneous considerations………..”

15. In R. Rathinam’s case (supra) the accused were granted bail pending

trial. Some Advocates filed a petition for cancellation of bail granted to the

accused. The said petition was not entertained by the Bench. It was held by the

High Court that the correctness of an order passed by the learned Single Bench
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cannot be doubted before the Division Bench. The remedy is under Article 136

of the Constitution of India. But, it was held that in terms of Sub-section (2) of

Section 439 of the Code, the bail can be cancelled. The Court held as under:-

“8. It is not disputed before us that the power so vested in the High Court
can be invoked either by the State or by any aggrieved party. Nor is it
disputed that the said power can be exercised suo motu by the High Court. If
so, any member of the public, whether he belongs to any particular
profession or otherwise, who has a concern in the matter can move the High
Court to remind it of the need to invoke the said power suo motu. There is no
barrier either in Section 439 of the Code or in any other law which inhibits a
person from moving the High Court to have such powers exercised suo motu.
If the High Court considers that there is no need to cancel the bail for the
reasons stated in such petition, after making such considerations it is open to
the High Court to dismiss the petition. If that is the position, it is also open to
the High Court to cancel the bail if the High Court feels that the reasons
stated in the petition are sufficient enough for doing so. It is, therefore,
improper to refuse to look into the matter on the premise that such a petition
is not maintainable in law.”

16. The Supreme Court in Puran’s case (supra) upheld the locus standi of

father of the deceased in dowry death case to move the High Court to seek

cancellation of bail granted by the Additional Sessions Judge as he was not a

stranger to the case. The relevant extracts from the decision in Puran’s case

(supra) are reproduced as under:-

“10. Mr. Lalit next submitted that once bail has been granted it should not
be cancelled unless there is evidence that the conditions of bail are being
infringed. In support of this submission he relied upon the authority in the
case of Dolat Ram Ors. State of Haryana, (1995) 1 SCC 349 . In this case
it has been held that rejection of bail in a non-bailable case at the initial stage
and the cancellation of bail already granted have to be considered and dealt
with on different basis. It has been held that very cogent and overwhelming
circumstances are necessary for an order directing the cancellation of the bail
already granted. It has been held that generally speaking the grounds for
cancellation of bail broadly are interference or attempt to interfere with the
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due course of administration of justice or evasion or attempt to evade the due
course of justice or abuse of the concession granted to the accused in any
manner. It is, however, to be noted that this Court has clarified that these
instances are merely illustrative and not exhaustive. One such ground for
cancellation of bail would be where ignoring material and evidence on record
a perverse order granting bail is passed in a heinous crime of this nature and
that too without giving any reasons. Such an order would be against
principles of law. Interest of justice would also require that such a perverse
order be set aside and bail be cancelled. It must be remembered that such
offences are on the rise and have a very serious impact on the Society.

Therefore, an arbitrary and wrong exercise of discretion by the trial court has
to be corrected.

11. Further, it is to be kept in mind that the concept of setting aside the
unjustified illegal or perverse order is totally different from the concept of
cancelling the bail on the ground that accused has misconducted himself or
because of some new facts requiring such cancellation. This position is made
clear by this Court in Gurcharan Singh v. State (Delhi Admn.) reported in
(1978) 1 SCC 118. In that case the Court observed as under (SCC p. 124,
para 16):-

“If, however, a Court of Session had admitted an accused person to
bail, the State has two options. It may move the Sessions Judge if
certain new circumstances have arisen which were not earlier known
to the State and necessarily, therefore, to that Court. The State may as
well approach the High Court being the superior Court under S.
439(2) to commit the accused to custody. When however, the State is
aggrieved by the order of the Sessions Judge granting bail and there
are no new circumstances that have cropped up except those already
existed, it is futile for the State to move the Sessions Judge again and
it is competent in law to move the High Court for cancellation of the
bail. This position follows from the subordinate position of the Court
of Session vis-a-vis the High Court.

*** *** ***

14. Mr. Lalit next submitted that a third party cannot move a Petition for
cancellation of the bail. He submitted that in this case the Prosecution has not
moved for cancellation of the bail. He pointed out that the father of the
deceased had moved for cancellation of the bail. He relied upon the case of
Simranjit Singh Mann vs. Union of India, (1992) 4 SCC 653 and Janata Dal
vs. H.S. Chowdhary, (1991) 3 SCC 356. Both these cases dealt with Petitions
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under Article 32 of the Constitution of India whereunder a total stranger
challenged the conviction and sentence of the accused. This Court held that
neither under the provisions of the Criminal Procedure Code nor under any
other statute is a third party stranger permitted to question the correctness of
the conviction and sentence imposed by the Court after a regular trial. It was
held that the Petitioner, who was a total stranger, had no ‘locus standi’ to
challenge the conviction and the sentence awarded to the convicts in a
Petition under Article 32. The principle laid down in these cases has no
application to the facts of the present case. In this case the application for
cancellation of bail is not by a total stranger but it is by the father of the
deceased. In this behalf the ratio laid down in the case of R. Rathinam vs.
State by DSP, District Crime Branch, Madurai District, Madurai and anr
(2000) 2 SCC 391, needs to be seen. In this case Bail had been granted to
certain persons. A group of practising advocates presented petitions before
Chief Justice of the High Court seeking initiation of suo motu proceedings
for cancellation of bail. The Chief Justice placed the petitions before a
Division Bench. The Division Bench refused to exercise the suo motu
powers on the ground that the petition submitted by the advocates was not
maintainable. This Court held that the frame of sub-section (2) of Section
439 indicates that it is a power conferred on the Courts mentioned therein. It
was held that there was nothing to indicate that the said power can be
exercised only if the State or investigating agency or a Public Prosecutor
moves a petition. It was held that the power so vested in the High Court can
be invoked either by the State or by any aggrieved party. It was held that the
said power could also be exercised suo motu by the High Court. It was held
that, therefore, any member of the public, whether he belongs to any
particular profession or otherwise could move the High Court to remind it of
the need to exercise its power suo motu. It was held that there was no barrier
either in Section 439 of the Criminal Procedure Code or in any other law
which inhibits a person from moving the High Court to have such powers
exercised suo motu. It was held that if the High Court considered that there
was no need to cancel the bail then it could dismiss the Petition. It was held
that it was always open to the High Court to cancel the bail if it felt that there
were sufficient reasons for doing so.

*** *** ***

16. We see no substance in this submission. In the hierarchy of Courts, the
High Court is the Superior Court. A restrictive interpretation which would
have effect of nullifying Section 439(2) cannot be given. When Section
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439(2) grants to the High Court the power to cancel bail, it necessarily
follows that such powers can be exercised also in respect of Orders passed by
the Court of Sessions. Of course cancellation of bail has to be on principles
set out hereinabove and only in appropriate cases.

17. Further, even if it is an interlocutory order, the High Court’s inherent
jurisdiction under Section 482 is not affected by the provisions of Section
397(3) of the Code of Criminal Procedure. That the High Court may refuse
to exercise its jurisdiction under Section 482 on the basis of self-imposed
restriction is a different aspect. It cannot be denied that for securing the ends
of justice, the High Court can interfere with the order which causes
miscarriage of justice or is palpably illegal or is unjustified. [Re. Madhu
Limaye v. State of Maharashtra, (1977) 4 SCC 551 and Krishnan and
Another v. Krishnaveni and Another, (1997) 4 SCC 241]”.

[emphasis supplied]

17. The matter came up for consideration before the Supreme Court in the

case of Zahira Habibullah Sheikh and another vs. State of Gujarat and

others, reported as (2006) 3 SCC 374, wherein the Court held as under:-

“35. This Court has often emphasised that in a criminal case the fate of the
proceedings cannot always be left entirely in the hands of the parties, crime
being public wrong in breach and violation of public rights and duties, which
affects the whole community as a community and is harmful to the society in
general. The concept of fair trial entails familiar triangulation of interests of
the accused, the victim and the society and it is the community that acts
through the State and prosecuting agencies. Interests of society is not to be
treated completely with disdain and as persona non grata. The courts have
always been considered to have an over-riding duty to maintain public
confidence in the administration of justice – often referred to as the duty to
vindicate and uphold the “majesty of the law”. Due administration of justice
has always been viewed as a continuous process, not confined to
determination of the particular case, protecting its ability to function as a
Court of law in the future as in the case before it. If a criminal Court is to be
an effective instrument in dispensing justice, the Presiding Judge must cease
to be a spectator and a mere recording machine by becoming a participant in
the trial evincing intelligence, active interest and elicit all relevant materials
necessary for reaching the correct conclusion, to find out the truth, and
administer justice with fairness and impartiality both to the parties and to the
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community it serves. The courts administering criminal justice cannot turn a
blind eye to vexatious or oppressive conduct that has occurred in relation to
proceedings, even if a fair trial is still possible, except at the risk of
undermining the fair name and standing of the judges as impartial and
independent adjudicators.

36. The principles of rule of law and due process are closely linked with
human rights protection. Such rights can be protected effectively when a
citizen has recourse to the Courts of law. It has to be unmistakably
understood that a trial which is primarily aimed at ascertaining the truth has
to be fair to all concerned. There can be no analytical, all comprehensive or
exhaustive definition of the concept of a fair trial, and it may have to be
determined in seemingly infinite variety of actual situations with the ultimate
object in mind viz. whether something that was done or said either before or
at the trial deprived the quality of fairness to a degree where a miscarriage of
justice has resulted. It will not be correct to say that it is only the accused
who must be fairly dealt with. That would be turning a Nelson’s eye to the
needs of the society at large and the victims or their family members and
relatives. Each one has an inbuilt right to be dealt with fairly in a criminal
trial. Denial of a fair trial is as much injustice to the accused as is to the
victim and the society. Fair trial obviously would mean a trial before an
impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial
means a trial in which bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated. If the witnesses get
threatened or are forced to give false evidence that also would not result in a
fair trial. The failure to hear material witnesses is certainly denial of fair trial.

37. A criminal trial is a judicial examination of the issues in the case and its
purpose is to arrive at a judgment on an issue as to a fact or relevant facts
which may lead to the discovery of the fact issue and obtain proof of such
facts at which the prosecution and the accused have arrived by their
pleadings; the controlling question being the guilt or innocence of the
accused. Since the object is to mete out justice and to convict the guilty and
protect the innocent, the trial should be a search for the truth and not a bout
over technicalities, and must be conducted under such rules as will protect
the innocent, and punish the guilty. The proof of charge which has to be
beyond reasonable doubt must depend upon judicial evaluation of the totality
of the evidence, oral and circumstantial, and not by an isolated scrutiny.”

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18. In the case of National Human Rights Commission vs. State of

Gujarat and others reported as (2009) 6 SCC 767, the Supreme Court held as

under:-

“19. The Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power was adopted by the United Nations General Assembly in
resolution 40/34 of 29th November, 1985. According to the first paragraph of
this declaration, victims of crime are described as persons who, individually
or collectively, have suffered harm, including physical or mental injury,
emotional suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that are in violation of criminal
laws operative in Member States, including those laws proscribing criminal
abuse of power. It is they who need protection.

20. This is essentially to obliterate the apprehension that the public
prosecutor is not fair in court or is not conducting the prosecution in the
proper manner. The State of Gujarat shall appoint public prosecutors in each
of the cases in consultation with the SIT which opinion shall be final and
binding on the State Government.

21. It needs to be emphasized that the rights of the accused have to be
protected. At the same time the rights of the victims have to be protected and
the rights of the victims cannot be marginalized. Accused persons are entitled
to a fair trial where their guilt or innocence can be determined. But from the
victims’ perception the perpetrator of a crime should be punished. They stand
poised equally in the scales of justice.

*** *** ***

31. As noted above, the role of victim in a criminal trial can never be lost
sight of. He or she is an inseparable stakeholder in the adjudicating process.
United Nations Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, was adopted by the General Assembly through a
resolution 40/34 of 29th November 1985. Articles 4 and 5 of the above
mentioned United Nations Declaration categorically states:

4. Victims should be treated with compassion and respect for their
dignity. They are entitled to access to the mechanisms of justice
and to prompt redress, as provided for by national legislation, for
the harm that they have suffered.

CRA-933-2014
17

5. Judicial and administrative mechanisms should be established
and strengthened where necessary to enable victims to obtain
redress through formal or informal procedures that are expeditious,
fair, inexpensive and accessible. Victims should be informed of
their rights in seeking redress through such mechanisms.

19. In Amanullah’s case (supra), the Court examined the locus standi in a

criminal case and held that though it is the duty of the State to get the culprit

booked for the offence committed by him but if the State fails in this regard and

party having bona fide connection with the cause of action cannot be left at the

mercy of the State without any option to approach the appellate court for

seeking justice. The Court held that the appeal is maintainable preferred by a

witness. The Court held as under:-

“19. The term ‘locus standi’ is a Latin term, the general meaning of which is
“place of standing”. Concise Oxford English Dictionary, 10th Edn., at page
834, defines the term “locus standi” as the right or capacity to bring an action
or to appear in a court. The traditional view of “locus standi” has been that
the person who is aggrieved or affected has the standing before the court that
is to say he only has a right to move the court for seeking justice. Later, this
Court, with justice-oriented approach, relaxed the strict rule with regard to
“locus standi”, allowing any person from the society not related to the cause
of action to approach the court seeking justice for those who could not
approach themselves. Now turning our attention towards the criminal trial,
which is conducted, largely, by following the procedure laid down in CrPC.
Since, offence is considered to be a wrong committed against the society, the
prosecution against the accused person is launched by the State. It is the duty
of the State to get the culprit booked for the offence committed by him. The
focal point, here, is that if the State fails in this regard and the party having
bona fide connection with the cause of action, who is aggrieved by the order
of the court cannot be left at the mercy of the State and without any option to
approach the appellate court for seeking justice.

*** *** ***

24. After considering the case law relied upon by the learned counsel for
the appellants as well as the respondents, in the light of the material placed
CRA-933-2014
18

on record, we are of the view that the appellants have locus standi to
maintain this appeal. From the material placed on record, it is clear that the
appellants have precise connection with the matter at hand and thus, have
locus to maintain this appeal. The learned counsel for the appellants has
rightly placed reliance upon the Constitution Bench judgment of this Court,
namely, P.S.R Sadhanantham v. Arunachalam, (1980) 3 SCC 141 and other
decisions of this Court in Ramakant Rai v. Madan Rai, (2003) 12 SCC 395,
Esher Singh v. State of A.P., (2004) 11 SCC 585, Rama Kant Verma v. State
of U.P., (2008) 17 SCC 257. Further, it is pertinent here to observe that it
may not be possible to strictly enumerate as to who all will have locus to
maintain an appeal before this Court invoking Article 136 of the Constitution
of India, it depends upon the factual matrix of each case, as each case has its
unique set of facts. It is clear from the aforementioned case law that the
Court should be liberal in allowing any third party, having bona fide
connection with the matter, to maintain the appeal with a view to advance
substantial justice. However, this power of allowing a third party to maintain
an appeal should be exercised with due care and caution. Persons,
unconnected with the matter under consideration or having personal
grievance against the accused should be checked. A strict vigilance is
required to be maintained in this regard.”

20. In Lachhman Dass vs. Resham Chand Kaler and Another (2018) 3

SCC 187, an order of granting bail was set aside by the Supreme Court,

observing thus:-

“11. Apart from the above, it is also important to note the legal principles
governing this case. We make it clear that this case is not an appeal seeking
cancellation of bail in any sense rather, this case calls for the legal
sustainability of the impugned order granting bail to the accused-respondent
herein. The difference between the cancellation of the bail and a legal
challenge to an order granting bail for non-consideration of material
available on record is a settled proposition. To clarify, there is no ground
pleaded herein that a supervening event breaching bail conditions is raised.
[refer to State through C.B.I. vs. Amarmani Tripathi, (2005) 8 SCC 21;
Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189].

12. Having cleared this confusion, we may clarify, though seriously urged
by the counsel appearing on behalf of the respondent no.1, that there is no
warrant for cancellation of bail as there has been no breach of bail condition,
yet such submission is not countenanced under the law.”

CRA-933-2014
19

21. The declaration of basic principles of justice for victims of crime issued

by General Assembly of United Nations provides for victim to obtain redress

through formal and informal procedures that are expeditious, fair, inexpensive

and accessible. Such declaration contemplates that responsiveness of judicial

and administrative processes to the needs of victims should be facilitated by

informing the victims of their role and the scope, timing and progress of the

proceedings including allowing the views and concerns of the victims to be

presented and considered at the appropriate stages of the proceedings where

their personal interests are involved. Therefore, though it is the responsibility of

the State to bring the accused to law but in such process the actual sufferer of

crime cannot be permitted to stay outside the law and to watch the proceedings

from hindsight. It will be travesty of justice if the victims of such heinous crime

are denied right to address their grievances before the courts of law.

22. The judgment in Puran’s case (supra) arises out of an order passed by

the High Court cancelling bail granted by Additional Sessions Judge. The Court

has drawn distinction when conditions of bail are being infringed such as

interference or attempt to interfere with the due course of administration of

justice or evasion or attempt to evade the due course of justice or abuse of the

concession granted to the accused in any manner or when the cancellation of

bail is sought when bail is granted by ignoring material evidence on record or a

perverse order granting bail is passed in a heinous crime. Such an order was said

to be against the principles of law. That was a case of an offence under Section

498 and 304-B of IPC. The Court noticed that such offences are on the rise and

have a very serious impact on the Society. The Court held that concept of setting

aside unjustified, illegal or perverse order is totally different from the concept of
CRA-933-2014
20

cancelling the bail on the ground that accused has misconducted himself or

because of some new facts require such cancellation. The Court considered an

argument that a third party cannot move a petition for cancellation of bail as the

prosecution has not moved for cancellation. The Court held that an application

for cancellation of bail is not by a total stranger but by the father of the

deceased. Therefore, it was held that powers so vested in the High Court can be

invoked either by the State or by an aggrieved party. The said power could also

be exercised suo motu by the High Court. In view of the aforesaid judgment,

which pertains to era prior to amendment in Section 372 of the Code giving right

to a victim to file an appeal against the order of conviction, clearly gives right to

the prosecutrix, a victim of heinous crime on her person to approach this Court

for cancellation of bail.

23. Once right of appeal has been given to a victim, it shall include all

ancillary rights which are attached with the right to appeal. Such right to appeal

will include right to seek cancellation of bail if the victim is aggrieved against

such an order.

24. In view of the above, we find that the victim has a right to seek

cancellation of an order of suspension of sentence, as it is her rights and honour,

which is in issue apart from the crime against humanity protected by the State.

(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
S/

Digitally signed by SACHIN CHAUDHARY
Date: 2018.07.18 11:01:38 +05’30’

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